Karnataka High Court
Kumar. Omkar Mahadev Malavi vs Shri. Annappa Sadanand ... on 6 January, 2023
Bench: Ravi V.Hosmani
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MFA No. 103083 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
MISCELLANEOUS FIRST APPEAL NO.103083 OF 2015 (MV-I)
BETWEEN:
KUMAR. OMKAR MAHADEV MALAVI
AGE:15 YEARS, OCC:STUDENT
R/O:BEEDI, TQ:KHANAPUR
SINCE MINOR R/BY MINOR GUARDIAN FATHER
SHRI.MAHADEV NARAYAN MALAVI
AGE:MAJOR, OCC:AGRICULTURE
R/O:BEEDI, TQ:KHANAPUR, DIST:BELAGAVI.
...APPELLANT
(BY SHRI HARISH S. MAIGUR.,ADVOCATE)
AND:
1. SHRI ANNAPPA SADANAND JOTHIBANAVAR
AGE:30 YEARS, OCC:BUSINESS
R/O:CHIGALI, TQ:MUNDGOD, DIST:KARWAR.
2. THE MANAGER
ORIENTAL INSURANCE COMPANY LIMITED
ANNAPURNA JANARDHAN ARCADE, SILVER JUBLIEE CIRCLE
CHINNAPPA P.B.ROAD, DHARWAD. THROUGH MANAGER
DANDAGAL
ORIENTAL INSURANCE COMPANY LIMITED
Digitally signed by CLUB ROAD, OPP CIVIL HOSPITAL, BELAGAVI.
ANNAPURNA
CHINNAPPA DANDAGAL
Location: High court of
Karnataka, Dharwad
Bench, Dharwad
...RESPONDENTS
Date: 2023.01.17
11:05:55 -0800
(BY SMT. M.A.MAKHANDAR, ADVOCATE FOR R1;
SHRI, M.K.SOUDAGAR, ADVOCATE FOR R2)
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MFA No. 103083 of 2015
THIS MFA FILED U/SEC.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 24.04.2014 PASSED IN MVC
NO.1251/2013 ON THE FILE OF THE MEMBER MOTOR
ACCIDENT CLAIMS TRIBUNAL AT KHANAPUR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and award dated
24.04.2014 passed by learned Senior Civil Judge
and M.A.C.T, Khanapur (for short, 'tribunal') in
MVC No.1251/2013, this appeal is filed by claimant
for enhancement of compensation.
2. Brief facts as stated are that in an
accident that occurred on 26.10.2012 due to
collision between bicycle and Tempo Trax bearing
registration no.KA-27/MA-300, minor claimant
sustained grievous injuries. Despite treatment, he
did not recover fully and sustained permanent
physical disability.
MFA No. 103083 of 2015
3. Alleging loss of earning capacity, he filed
MVC no.1251/2013 under Section 166 of Motor
Vehicles Act, 1988 (hereinafter referred to as 'M.V.
Act' for short) against owner and insurer of
offending vehicle.
4. On service of summons, insurer filed
objections denying claim petition averments. It
was specifically contended that owner of offending
vehicle violated terms and conditions of insurance
policy, as such it was not liable to pay
compensation.
5. Thereafter, Tribunal framed issues and
recorded evidence of claimant wherein two
witnesses were examined as PWs.1 and 2 and got
marked Exhibits P1 to P16. On other hand,
respondent did not step into witness box, but
produced certified copy of insurance policy as
Exhibit R1.
MFA No. 103083 of 2015
6. Only ground on which enhancement
sought is that claimant was a minor student aged
13 years, who sustained following fracture of right
femur, hemorrhage contusion on frontal bone and
fracture of nasal bone, which is assessed by
PW2/doctor to cause disability of 25% in respect of
right lower limb, considered as functional disability
by Tribunal and awarded compensation under
following heads;
Sl.no. Heads Amount
1. Loss of future income Rs.56,250.00
2. Pain and suffering Rs.20,000.00
3. Loss of amenities Rs.25,000.00
4. Medical Expenses Rs.44,900.00
5. Diet, nourishment and Rs.15,000.00
attendants charges
including conveyance
6. Disfiguration Rs.10,000.00
Total Rs.1,71,150.00
7. Relying upon decision of Hon'ble Supreme
Court in case of Master Mallikarjun Vs
MFA No. 103083 of 2015
Divisional Manager, National Insurance
Company Limited & Another reported in AIR
2014 Supreme Court 736, learned counsel for
appellant submits that appropriate compensation
may be awarded.
8. Sri M.K.Soudagar, learned counsel
appearing for respondent no.2 submits that while
assessing functional disability, Tribunal has taken
physical disability as functional disability. It is
further submitted that normally 1/3 r d limb
disability is taken as whole body disability. If said
principle is applied, functional disability of
claimant would be less than 10%. Therefore, as
per Master Mallikarjun's case (supra), claimant
would be entitled for compensation under 1 s t slab.
Claimant would also be entitled for actual money
spent towards treatment apart from loss of income
of parents during said period. If compensation is
recomputed as above, there would not be any
MFA No. 103083 of 2015
much difference in award. Therefore, no
interference as called for.
9. From above submission, only point that
would arise for consideration is:
"Whether claimant is entitled for
enhancement of compensation as sought
for?"
10. Occurrence of accident involving insured
vehicle due to rash and negligent driving by its
driver, claimant sustaining injuries therein,
issuance of insurance policy which was valid as on
date of accident are not in dispute. Tribunal
determined age of claimant at 13 years and his
occupation as student, which are also not in
dispute. Tribunal took note of injuries as
mentioned in Exhibits P5 and P7/wound certificates
and disability as assessed in Ex.P9-disability
certificate as well as deposition of claimant as PW1
and Dr.A.B.Patil, as PW2. On perusal of Exhibits P6
MFA No. 103083 of 2015
and 7, certified copies of which were made
available for perusal of Court by learned counsel
for insurer, it is seen that injuries noted by
Tribunal find mentioned therein. In Exhibit P9
issued by PW2, on clinical examination of claimant,
PW2 has recorded that patient had pain in right
knee and suffered pain while working or standing
on right foot and he was suffering from antalgic
gait, wasting of right thigh muscles and shortening
of right lower limb was seen. Restriction of flexion
of right hip by 30 degrees and flexion of right knee
by 45 degree is noted. It is also noted that there is
malunion fracture of digital 3 r d of right femur.
11. Though during cross-examination, PW2
has admitted that there is no shortening of limb.
While passing impugned award, Tribunal has
observed that claimant was incapable of walking
properly. Even giving some scope for improvement
considering young age of claimant, whether
MFA No. 103083 of 2015
disability to extent of 25% can be assessed has to
be considered. In view of admission by doctor that
there was no shortening possibility for over
assessment cannot be ruled out.
12. Next question that would arise for
consideration would be whether claimant is entitled
for compensation under 1 s t slab or 2 n d slab as per
decision in Master Mallikarjun (supra).
13. Considering extent of restriction in
flexion and antalgic gait sustained, it would be
proper to assess disability of claimant at above
10%. This would avail compensation under 2nd
slab. Point for consideration is thus answered
partly in affirmative.
14. In result, I pass following:
ORDER
i. Appeal is allowed in part as against
compensation assessed by Tribunal at
Rs.1,71,150/-, claimant is held entitled
MFA No. 103083 of 2015
for compensation of Rs.3,00,000/- along
with interest at rate of 6% per annum as
awarded by Tribunal.
ii. Insurers are directed to deposit
enhanced compensation within six weeks
from date of receipt of certified copy of
this order.
iii. Directions issued by tribunal regarding
release of compensation would
proportionately apply to enhanced
compensation also.
Sd/-
JUDGE
AM
